This mаtter has previously come before me on the application of applicant Atiyeh, Governor of Oregon, applicant Watson, administrator of the Corrections Division of the State of Oregon, and applicant Cupp, Superintendent of the Oregon State Penitentiary, on a motion for a stay of the final injunction issued by the United States District Court for the District of Oregon pending appeal to the Court оf Appeals for the Ninth Circuit. I issued a temporary stay, feeling that on the basis of the application there was merit to some of the applicants’ points, but not wanting to proceed further with even my own аnalysis without calling for a response. I called for that response, and it has now been received.
The tests have been stated and restated as to probability of success on the merits, the probability of four Justices voting to grant certiorari, and the like as guideposts for the exercise of the function of the Circuit Justice in granting or denying stays. Because this is not an appeal from an adverse
*1313
ruling of the Court of Aрpeals for the Ninth Circuit, from which a similar stay was sought and denied, it is not in a posture where the so-called “stay equities” can be readily evaluated, but I am satisfied in my own mind that, although it should not be nearly as frequently done as in the case of a final judgment of the court of appeals, an application to a Circuit Justice of this Court from a district court is within the contemplation of the All Writs Act, 28 U. S. C. § 1651 (a). I do not understand the respоndents to contest this proposition as a matter of law. I recognize that they are correct in their statement in their response that “[t]he normal presumption is that ‘[i]n all cases, the fact weighs heavily that the lower court refused to stay its order pending appeal.’ ” Memorandum for Respondents 2. And, because an appeal from the District Court order is presently pending before the Court of Appeаls for the Ninth Circuit, the rule to be followed is that “[o]rdinarily a stay application to a Circuit Justice on a matter before a court of appeals is rarely granted . . . .”
Pasadena Board of Education
v.
Spangler,
Having given such time as was possible to the consideration of the lengthy and able submissions on the part of both parties, I have decided to grant the stay pending the decision of this Court in Rhodes v. Chapman, No. 80-332, presently scheduled for argument this Term, or the decision of the Cоurt of Appeals for the Ninth Circuit pursuant to its expedited briefing schedule (whichever may come first). My reasons for doing so follow and they rest both on procedural and substantive grounds.
I find in the carefully considered opinion, findings of fact, and conclusions of law of the District Court a set of assumptions which I do not believe the Constitution warrants, and I believe that at least three other Justices of this Court would concur in my belief. The сourt dealt with a “maximum security prison” located in Salem, Ore., comprising 22 acres surrounded by a re-enforced concrete wall averaging
*1314
25 feet in height. Prisoners are housed in five units. One of these cellblocks was built in 1929, two in the early 1950’s, and the newest in 1964.
The District Court also relied on the testimony of a professor of psychology at the University of Texas at Arlington to the effect that the hоusing at the Salem institution is “inadequate to avoid adverse physical and mental effects.” Ibid. It also relied on the testimony of the Dean of the University of Chicago Law School that the “overcrowding” levels that exist at the institution undermine the initiative of inmates to seek self-improvement and prevent their rehabilitation. Id., at 811.
Naturally, penal officials would like to have a larger share of the State’s budget, just as would any number of оther state officials administering programs mandated by the State. But there is nothing in the Constitution that says that “rehabilitation” is the sole permissible goal of incarceration, and we have only recently stated that retribution is equally permissible. See
Gregg
v.
Georgia,
The District Court concluded by stating that overcrowding “exceeds the level of applicable professional standards; has increased the health risks to which inmates are exposed; has impinged on the proper delivery of medical and mental health care; has reduced the opportunity for inmates to participate in rehabilitative programs; has resulted in idleness; has produced an atmosphere of tension and fear among inmates and staff; has reduced the ability of the institutions to protect the inmates from assaults; and is likely to produce embit
*1315
tered citizens with heightеned antisocial attitudes and behavior.”
I think the District Court, while it may be correct in its findings of fact, and is certainly closer to the scene than a single Circuit Justice in Washington, has missed the point of several of our cаses, including
Price
v.
Johnston,
I find the District Court’s efforts to distinguish
Bell
v.
Wolfish, supra,
particularly unpersuasive, although I likewise realize that there is considerable difference of opinion among the Members of this Court as to the merits of that decision. The District Court states that
Bell
“is not controlling here” because double-celling of pretrial detainees for no more than 60 days is quite different from institutions housing people who have been convicted of crime and are sentenced to long-term confinement. But this cuts both ways: a pretrial detainee, presumably detained on probable cause but not yet having been found guilty аs charged under our constitutional procedures, cannot be “punished” at all. See
Bell
v.
Wolfish, supra.
The respondents here, however, each of whom
has
been tried, found guilty, and sentenced to a term which turns out to be, in terms of “mean time served,” 24 months,
It is equally well settled that prisoners have constitutional rights, and that
cadena temporal,
see
Weems
v.
United States,
The actual order entered by the District Court reads as follows:
“[T]he court will require that a reduction of the total population at the three facilities by 500 persons be accomplished by December 31, 1980, together with a further reduction of at least 250 by March 31, 1981. The order will not direct the state to adopt any particular methods to achieve this goal. However, to аssure that progress toward that goal is being made, defendants will be ordered to report monthly, commencing on September 1, 1980, on the number of persons housed at each *1317 facility and the steps that have been taken and remain to be taken to meet the deadlines imposed.”495 F. Supp., at 806 .
In my opinion, the above order of the District Court fails to comply with Federal Rule of Civil Procedure 65 (d), which provides in relevant part:
“Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained . . . .”
Several years ago we stated in
Schmidt
v.
Lessard,
“As we have emphasized in the past, the specificity provisions of Rule 65 (d) are no mere technical requirements. The Rule was designed to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood ....
“The requirement of specificity in injunction orders performs a second important function. Unless the trial court carefully frames its orders of injunctive relief, it is impossible for an appellate tribunal to know precisеly what it is reviewing. Gunn [v. University Committee to End the War, 399 U. S.] 383, [388 (1970)]. We can hardly begin to assess the correctness of the judgment entered by the District Court here without knowing its precise bounds. In the absence of specific injunctive relief, informed and intelligent appellate review is greatly complicated, if not made impossible.” Id., at 476-477.
The language in the order of the District Court directing the prison officials to accomplish a further reduction of “at least 250” by March 31, 1981, falls short of this specificity requirement.
*1318 For all of the above-stated reasons, and because in the normal course of events by the close of this Court's October 1980 Term a decision should be handed down in Rhodes v. Chapman, supra, I think that the District Court's ultimate resolution of the case before it will be facilitated, not retarded, by the issuance of a stay as previously- indicated. There is no reason for courts to become the allies of prison оfficials in seeking to avoid unpleasant prison conditions when the executive and the legislature of the State have decided that only a certain amount of money shall be allocated to prisоn facilities; there is likewise no reason for the District Court to stay its hand when specific constitutional violations are called to its attention.
It is accordingly ordered that the injunction issued by the District Court be stayed, pending either the decision of the Court of Appeals for the Ninth Circuit in this case or the decision of this Court in Rhodes v. Chapman, supra, whichever may come first.